arrest in lieu of warrant?


On 29 April, the Supreme Court of the US, in a 6-3 decision, concluded that someone who has been arrested in "absent" from the premises and therefore cannot refuse to allow a search of their home. 

In a previous case -- one dealing with domestic violence -- the situation had the husband refusing to allow law enforcement to enter the premises, while the wife consented.  There, the Supreme Court ruled that law enforcement should NOT have entered the premises because though one partner was consenting, the other was on the premises and refusing.  That refusal, said the court, was sufficient to deny entrance in the absence of a search warrant.

The recent decision keys on the idea of absence, with the majority ruling that someone cannot refuse a search when they are not at home.   Thus, there is no need to get a search warrant  where two occupants disagree about whether to allow entrance to the home and the one refusing consent is arrested, since they are no longer considered "present" and are thus unable to refuse entrance. 

“We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason,” Alito said.

While I don't disagree that there are situations where an emergency should trump the need to get authorization to enter a private home, in the absence of an emergency law enforcement should NOT be able to subvert the obligation to get a warrant merely by arresting those who stand in their way.